No. 18-547 ================================================================

In The

Supreme Court of the United States

--------------------------------- ---------------------------------

MELISSA ELAINE KLEIN AND AARON WAYNE KLEIN,

Petitioners,

v.

OREGON BUREAU OF LABOR AND INDUSTRIES,

Respondent.

--------------------------------- ---------------------------------

On Petition For Writ Of Certiorari To The Oregon Court Of Appeals

--------------------------------- ---------------------------------

BRIEF OF AMICUS CURIAE THOMAS MORE SOCIETY

IN SUPPORT OF PETITION FOR A WRIT OF CERTIORARI

--------------------------------- ---------------------------------

STEPHEN M. CRAMPTON Counsel of Record CRAMPTON LEGAL SERVICES, PLLC P.O. Box 4506 Tupelo, MS 38803 (662) 255-9439 smcrampton@hotmail.com Counsel for Amicus Curiae

THOMAS L. BREJCHAPresident THOMAS MORE SOCIETY 309 West Washington St.Suite 1250 Chicago, IL 60606 (312) 782-1680 tbrejcha@ thomasmoresociety.org

================================================================

i

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................... i

TABLE OF AUTHORITIES .................................... ii

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF ARGUMENT.................................. 2

REASONS FOR GRANTING THE WRIT .............. 4

I. This Court Should Grant the Writ to

Clarify and Reinvigorate the Free Exercise

Clause in light of Employment Division v.

Smith. ............................................................ 4

A. The Free Exercise Clause is largely

impotent. ..................................................... 7

B. The rise of antidiscrimination laws............ 9

C. The antidiscrimination agenda. ............... 12

II. This Court Should Grant the Writ to

Address Serious Concerns of Religious

Discrimination.. ........................................... 17

CONCLUSION ....................................................... 19

ii

TABLE OF AUTHORITIES

Cases

Boy Scouts of America v. Dale,

530 U.S. 640 (2000) ………………………………11

Employment Division v. Smith,

494 U.S. 872 (1990) ..................................... passim

Engel v. Vitale,

370 U.S. 421, 431 (1962) ……………………….17

Hosanna Tabor Lutheran Church v. EEOC,

565 U.S. 171 (2012) ………………………………11

Obergefell v. Hodges,

576 U.S. __, 135 S. Ct. 2584 (2015) ……………15

Parker v. Hurley,

514 F.3d 87 (1st Cir. 2008) ……………………….9

Reynolds v. United States, 98 U.S. 145 (1878)………………………………7, 10, 11, 17 Stormans, Inc., v. Wiesman,

579 U.S. __ (2016),

https://www.supremecourt.gov/opinions/15pdf/15-

862_2c8f.pdf………………………………….........13-14

Stormans, Inc. v. Wiesman,

794 F.3d 1064, 1075-76 (9th Cir. 2015) ………13

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

_U.S._, 137 S.Ct. 2012 (2017) ……………………8

West Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ……………………..............16

Statutes

Virginia Bill for Establishing Religious Freedom,

12 Hening's Stat. 84) ……………………………7, 10

iii

Other Authorities

David Bernstein, “Some Strange Consequences of

Public Accommodations Laws,” The Volokh

Conspiracy (May 25, 2010),

http://volokh.com/2010/05/25/some-strange-

consequences-of-public-accommodations-laws/ (last

accessed Nov. 21, 2018) ………………………….11-12

Frederick Mark Gedicks, Three Questions about

Hybrid Rights and Religious Groups, 117 Yale L.J.

Pocket Part 192 (2008),

http://yalelawjournal.org/forum/three-questions-

about-hybrid-rights-and-religious-groups …....15-16

Andy Kroll, “Meet the Megadonor Behind the

LGBTQ Movement,” The Rolling Stone (June 23,

2017),

https://www.rollingstone.com/politics/politics-

features/meet-the-megadonor-behind-the-lgbtq-

rights-movement-193996/ (last accessed Nov. 22,

2018) ……………………………………………………15

Douglas Laycock, The Remnants of Free Exercise,

1990 Sup. Ct. Rev. 1, 4 ……………………………….6

Bill Lind, “The Origins of Political Correctness,”

Accuracy in Academia (February 5, 2000),

https://www.academia.org/the-origins-of-political-

correctness/ (last accessed Nov. 22, 2018) ……12-13

Movement Advancement Project,

http://www.lgbtmap.org/our-work-and-mission, last

accessed Nov. 21, 2018 ………………………..…9, 10

National Center for Transgender Equality,

https://transequality.org/sites/default/files/docs/kyr/

PublicAccommodations_September2014.pdf (last

accessed Nov. 21, 2018) ……………………………..10

iv

B. Payton, “Ultra-Rich Gay Activist on Targeting

Christians: It’s time to ‘Punish the Wicked,’” The

Federalist (July 19, 2017),

http://thefederalist.com/2017/07/19/ultra-rich-gay-

activist-targeting-christians-time-punish-wicked/

(last accessed Nov. 22, 2018) ………………………15

Ryan S. Rummage, In Combination: Using Hybrid

Rights to Expand Religious Liberty, 64 Emory L. J.

1175, 1202 n.60 (2015) ………………………………..9

B. Wyman, The Law of the Public Callings as a

Solution of the Trust Problem, 17 Harv. L. Rev. 136,

159 (1903) ………………………………………………6

1

INTEREST OF AMICUS CURIAE1

Amicus Curiae Thomas More Society is a not-

for-profit, national public interest law firm

dedicated to restoring respect in law for life, family,

and religious liberty. Based in Chicago, the Thomas

More Society defends and fosters support for these

causes by providing high quality pro bono legal

services from local trial courts all the way to this

Court. Since its founding in 1997, the Thomas More

Society has handled hundreds of cases defending

the First Amendment rights of those expressing

themselves in public fora as well as ensuring the

free expression of religion in the public square.

The Thomas More Society has assisted

thousands of clients, including some of the nation’s

most renowned pro-life and religious leaders: David

Bereit and 40 Days for Life; Lila Rose and Live

Action; Joe, Ann, and Eric Scheidler and the Pro-

1 Counsel for a party did not author this brief in whole or in

part, and no such counsel or party made a monetary

contribution to fund its preparation or submission. No person

or entity other than amicus curiae or its counsel made a

monetary contribution to the preparation and submission of

this brief. All parties have received timely notice and have

consented to the filing of this brief.

2

Life Action League; Troy Newman and Operation

Rescue; Former Kansas Attorney General Phill

Kline; Catholic Bishops; Catholic Charities;

Dioceses; Religious Orders; the Notre Dame

Protestors (“ND88”); and many more. Given

amicus’ strong interest in the issues presented and

its expertise in the First Amendment, amicus

suggests that this brief may be helpful to the Court.

SUMMARY OF ARGUMENT

The issues presented in this case are of national

importance and also address a split in the circuits,

as Petitioners explain. See Pet. for Cert. at 20-26.

Although Petitioners argue for a narrow exception

to the expansive reach of the Oregon public

accommodations law because they engage in

artistic expression, the import of this case is

broader than that, reaching almost every business

in the state and implicating the rights of many

outside the state.

Antidiscrimination laws are mushrooming

across the nation, adding new groups claiming

special protections almost daily. As a result of the

chaotic and unsettled state of the Free Exercise

Clause in the wake of Employment Division v.

Smith, 494 U.S. 872 (1990), application of these

antidiscrimination laws often infringe the rights of

people of faith.

3

Because antidiscrimination laws are inherently

rooted in morality, they create special problems in

the realm of religious freedom. After Smith, the

courts tend to afford scant protection to litigants

raising claims under the Free Exercise Clause.2

Even when combined with a second right arguably

infringed, thereby allowing a claimant to present a

“hybrid rights” claim, litigants such as Petitioners

here face an uphill climb against a generally

applicable law such as Oregon’s public

accommodations law.

In addition, the weakness of the Free Exercise

Clause has created an opening for those motivated

by animus against particular religions and people

of faith to enact and apply antidiscrimination laws

such as Oregon’s in a manner designed to punish

those who disagree with the new secular orthodoxy

generally and same-sex marriage in particular.

This situation in turn threatens the rights of

conscience of otherwise law-abiding citizens

2 The First Amendment to the United States Constitution

provides in pertinent part: “Congress shall make no law

respecting an establishment of religion, or prohibiting the free

exercise thereof; . . .” U.S. Const. amend.1.

4

everywhere and creates a need for this Court to act

in order to clarify the meaning and application of

the Free Exercise Clause and to preserve the

delicate balance between church and state.

REASONS FOR GRANTING THE WRIT

I. This Court Should Grant the Writ to

Clarify and Reinvigorate the Free

Exercise Clause in light of Employment

Division v. Smith3.

The free exercise of religion is expressly

protected in the first part of the first section of the

First Amendment, adopted by the first Congress.

The Declaration of Independence emphatically

states that these rights are inalienable, not given

by government but by God.

Yet today the free exercise of religion receives

less respect and less protection than countless

unenumerated rights purportedly found in the

“emanations and penumbras” of the text of later

amendments adopted by much later Congresses. In

3 494 U.S. 872 (1990).

5

effect, the Free Exercise Clause has been stripped

of its strength and rendered largely impotent.

Simultaneously, but not coincidentally, the

citadel of the church faces an unprecedented

assault by the forces of a new secular orthodoxy

bent on compelling people of faith to conform to the

new morality.

Since this Court’s decision in Employment

Division v. Smith, 494 U.S. 872 (1990), lower courts

have been hopelessly divided and unable or

unwilling to protect the free exercise of religion.

The Smith decision has left the lower courts in

chaos and confusion as to the proper analysis of

Free Exercise claims, often failing to seriously

consider them at all.

This lack of protection, coupled with a growing

hostility against religion by the new secular

orthodoxy, has led to increased attacks on people of

faith using previously unknown tools.

Public accommodation laws were originally

narrowly confined to protect hapless travelers from

unwelcoming innkeepers, and had no application

6

elsewhere.4 Today, they have been interpreted and

applied so broadly that no business is safe from a

charge of “discrimination” arising from a benign

decision not to serve someone, especially if the

reason entails religion.

Lower courts now freely disregard claims under

the Free Exercise Clause and run roughshod over

the consciences and convictions of sincere people of

faith, lacking guidance on the meaning and

application of that clause.

As a result, we are at risk of succumbing to a

new “pall of orthodoxy” unknown to the Founders

and anathema to all lovers of freedom.

Something is clearly wrong.

This Court should accept the writ and grant

certiorari in order to clarify Smith and restore the

rights of all Americans to the free exercise of

religion.

4 See, e.g., B. Wyman, The Law of the Public Callings as a

Solution of the Trust Problem, 17 Harv. L. Rev. 136, 159

(1903).

7

A. The Free Exercise Clause is largely

impotent.

Even before Smith had taken root, one law

professor opined that “the Free Exercise Clause

itself now has little independent substantive

content.” Douglas Laycock, The Remnants of Free

Exercise, 1990 Sup. Ct. Rev. 1, 4. Since then, it has

grown even worse. With a few notable exceptions,

the only Free Exercise claims that have any chance

of succeeding are those wedded to another

constitutional right in the guise of a “hybrid” claim.

When this Court first addressed the Free

Exercise Clause 140 years ago in Reynolds v.

United States, 98 U.S. 145 (1878)5, it observed that

to “‘intrude . . . into the field of opinion’” was

beyond the power of the State; the power of the

5 It is ironic that Reynolds upheld Congress’ authority to

prohibit polygamy on grounds that it threatened natural

marriage, which the Court said was both “a sacred obligation”

and a civil contract upon which “society may be said to be

built.” 98 U.S. at 165. Polygamy was therefore “subversive of

good order.” 98 U.S. at 164. Had Mr. Chief Justice Waite

expressed those views in a bakery in Oregon today he might

have found himself under investigation by the Bureau of

Labor and Industries.

8

government reached outward actions only. Id. at

163 (quoting the preamble to the Virginia Bill for

Establishing Religious Freedom, 12 Hening's Stat.

84) (hereafter “the Virginia Bill”). The Smith Court

reiterated this principle, observing that the

government “may not punish the expression of

religious doctrines it believes to be false . . . or lend

its power to one or the other side in controversies

over religious authority or dogma . . . .” 494 U.S.

872, 877 (citations omitted).

Of course, there is much more to religion than

mere opinion. “[T]he ‘exercise of religion’ often

involves not only belief and profession but the

performance of (or abstention from) physical acts”

as well. Smith, 494 U.S. at 877; see also Trinity

Lutheran Church of Columbia, Inc. v. Comer,

_U.S._, 137 S.Ct. 2012, 2026 (2017) (Gorsuch, J.,

dissenting) (“After all, that Clause guarantees the

free exercise of religion, not just the right to inward

belief (or status).”). The Clause thus protects at

least some outward actions.

After Smith, however, the lower courts have

made short shrift of the Free Exercise Clause in the

context of neutral laws of general applicability.

Neither, in the vast majority of cases, has a “hybrid

rights” claim slowed the assault on religious

freedom. See Pet. for Cert. at 33-34. The First

Circuit noted in 2008 that “[n]o published circuit

9

court opinion . . . has ever applied strict scrutiny to

a case in which plaintiffs argued they had

presented a hybrid claim.” Parker v. Hurley, 514

F.3d 87, 98 (1st Cir. 2008); see also Ryan S.

Rummage, In Combination: Using Hybrid Rights to

Expand Religious Liberty, 64 Emory L. J. 1175,

1202 n.60 (2015) (“As of the writing of this

Comment, this statement remains true.”).

B. The rise of antidiscrimination laws.

The void created by the emasculation of the

Free Exercise Clause was quickly filled. Many

states and municipalities have enacted new

antidiscrimination laws that are at least ostensibly

neutral and of general applicability. The

proliferation of public accommodation laws is a case

in point. The number of states enacting laws

broadly protecting sexual orientation and gender

identity is increasing rapidly, and there are

organizations devoted almost exclusively to

expanding such laws as quickly as possible. See,

e.g., Movement Advancement Project (“MAP”), a

nonprofit organization working “to speed equality

and opportunity for all . . . by educating and

influencing external change agents, such as

policymakers and media, while simultaneously

strengthening the organizations and movements

advocating for change.”

10

(http://www.lgbtmap.org/our-work-and-mission,

last accessed Nov. 21, 2018).6

By means of blunt instruments such as these

laws, champions of the new morality have now

brought the power of the government to bear

against one side of the ongoing controversy

concerning same-sex marriage, in contravention of

the teachings of Reynolds and Smith. Those cases

were careful to note the limits of government

authority: “‘it is time enough for the rightful

purposes of civil government for its officers to

interfere when principles break out into overt acts

6 According to their website, at least nineteen (19) states and

the District of Columbia now have laws that explicitly

prohibit both sexual orientation and gender identity

discrimination, while another three (3) states explicitly

interpret their laws prohibiting sex discrimination to include

sexual orientation or gender identity.

(http://www.lgbtmap.org/equality-

maps/non_discrimination_laws, last accessed Nov. 21, 2018).

In addition, according to the National Center for Transgender

Equality as of September 2014 there were over 200 cities and

counties that explicitly prohibited gender identity

discrimination even if their state did not.

(https://transequality.org/sites/default/files/docs/kyr/PublicAcc

ommodations_September2014.pdf, last accessed Nov. 21,

2018).

11

against peace and good order.’’” Reynolds, 98 U.S.

145, 163 (quoting the Virginia Bill); see also

Hosanna Tabor Lutheran Church v. EEOC, 565

U.S. 171, 190 (2012) (distinguishing and finding

Smith inapplicable to internal church decisions

because “Smith involved government regulation of

only outward physical acts”).

Under the guise of public accommodation laws,

however, beliefs and opinions became fair game.

For example, in Boy Scouts of America v. Dale, 530

U.S. 640 (2000), a New Jersey law forbidding

discrimination in places of public accommodation

was employed against the Boy Scouts in an attempt

to force the Scouts to accept homosexual Scout

leaders, even though, as one commentator

observed, “the Boy Scouts are clearly not a ‘place,’

the Boy Scouts of America is not an

‘accommodation’ in the usual sense of the word, and

the membership policies of private organizations

are not ‘public.’” David Bernstein, “Some Strange

Consequences of Public Accommodations Laws,”

The Volokh Conspiracy (May 25, 2010), http://volokh.com/2010/05/25/some-strange-consequences-

12

of-public-accommodations-laws/ (last accessed Nov. 21,

2018).7

C. The antidiscrimination agenda.

It is tempting to view the rise of

antidiscrimination laws and their application

against people of faith as an accident, something of

an unintended consequence. But there is much

evidence to the contrary.

Almost twenty years ago, one commentator laid

out the history of political correctness, arguing that

it is a systematic and intentional effort to tear

down the current order. Bill Lind, “The Origins of

Political Correctness,” Accuracy in Academia

(February 5, 2000), https://www.academia.org/the-

origins-of-political-correctness/ (last accessed Nov. 22,

2018). Mr. Lind concluded his analysis with a

warning: “America today is in the throes of the

greatest and direst transformation in its history.

We are becoming an ideological state, a

country with an official state ideology

7 The ploy almost succeeded. Dale won at the New Jersey

Supreme Court, but this Court reversed in a narrow, 5-4

decision.

13

enforced by the power of the state.” Id.

(emphasis added).

Mr. Lind is not alone in discerning intent in this

forced march toward a new state ideology. Justice

Alito’s dissent from denial of certiorari in the case

of Stormans, Inc. v. Wiesman8, which was joined by

Chief Justice Roberts and Justice Thomas, suggests

a similar trend. The case involved new regulations

in Washington State requiring pharmacists to

dispense certain medications, including

abortifacients. Plaintiffs were Christians who

objected to the requirement on moral and religious

grounds. Reversing the trial court’s finding in

plaintiffs’ favor, the Ninth Circuit flatly rejected

their Free Exercise claims, applying rational basis

review, and denied recovery under plaintiffs’

alternative theories as well. Stormans, Inc. v.

Wiesman, 794 F.3d 1064, 1075-76 (9th Cir. 2015).

Justice Alito began his dissent from denial of

certiorari with a heavy tone: “This case is an

ominous sign.” He then commented on the

purported neutrality of the regulations:

8https://www.supremecourt.gov/opinions/15pdf/15-

862_2c8f.pdf).

14

There are strong reasons to doubt

whether the regulations were adopted

for—or that they actually serve—any

legitimate purpose. And there is

much evidence that the impetus

for the adoption of the regulations

was hostility to pharmacists

whose religious beliefs regarding

abortion and contraception are out of

step with prevailing opinion in

the State.

Id.

Justice Alito ended his introduction with a

portentous warning: “If this is a sign of how

religious liberty claims will be treated in the years

ahead, those who value religious freedom have

cause for great concern.” Id. (emphasis added).

One need not look very hard to find hard

evidence of intent to bring religious objectors to

heel. Consider, for example, Tim Gill, the

homosexual tech millionaire who has reportedly

“poured an estimated $422 million into various gay

15

rights causes” and, after Obergefell v. Hodges9, has

targeted individuals and businesses that refuse to

participate in same-sex wedding ceremonies. See B.

Payton, “Ultra-Rich Gay Activist On Targeting

Christians: It’s time to ‘Punish the Wicked,’” The

Federalist (July 19, 2017),

http://thefederalist.com/2017/07/19/ultra-rich-gay-

activist-targeting-christians-time-punish-wicked/

(last accessed Nov. 22, 2018). Mr. Gill is quoted as

saying with regard to those who oppose same-sex

weddings, “We’re going to punish the wicked.”

Id. (quoting Andy Kroll, “Meet the Megadonor

Behind the LGBTQ Movement,” The Rolling Stone

(June 23, 2017),

https://www.rollingstone.com/politics/politics-

features/meet-the-megadonor-behind-the-lgbtq-

rights-movement-193996/ (last accessed Nov. 22,

2018).

Not surprisingly, this hostility against religion

has raised its head in attacks on the Free Exercise

Clause itself, too. In a forum in the Yale Law

Journal discussing hybrid rights claims after Smith

one law professor openly questioned why religious

9 Obergefell v. Hodges, 576 U.S. __, 135 S. Ct. 2584 (2015).

16

groups should receive special protection at all.

Frederick Mark Gedicks, Three Questions about

Hybrid Rights and Religious Groups, 117 Yale L.J.

Pocket Part 192 (2008),

http://yalelawjournal.org/forum/three-questions-

about-hybrid-rights-and-religious-groups. Professor

Gedicks argued that secular minorities are just as

vulnerable to abuse as religious minorities, and so

should receive equal protection. “It is no answer

that the First Amendment protects religious beliefs

but not secular beliefs. In a radically pluralistic,

multicultural society like the United States, the

secular is arguably religious, and the religious is

arguably secular.”10

10 Professor Gedicks’ observation is particularly insightful.

In practice, religious acts now receive less protection than

“secular” acts, and religion has become a vice, not a virtue in

the eyes of the state.

17

II. This Court Should Grant the Writ to

Address Serious Concerns of Religious

Discrimination.

In light of this pattern of concerted effort to

eradicate religious dissenters, the prosecution of

the Kleins raises serious concerns of religious

discrimination. In the end, the recent spate of

antidiscrimination laws may themselves be

evidence of discrimination against people of faith.

After all, it was not so much the Kleins’ action

that Oregon has punished as it was their inaction --

that is, their refusal to do the bidding of the

complainants, in violation of their convictions.

Thus, their principles never did “break out into

overt acts” at all, as Reynolds and Smith require.

Moreover, as Petitioners make clear, they were

specifically punished, in part at least, because they

shared a Bible verse with the complainants. Pet. for

Cert. at 6; see also id. at 13 (summarizing App. 68-

82 and stating that court of appeals upheld

damages based on “quoting a bible verse”).

This singling out of pure religious speech --

quoting the Bible, no less -- for specific punishment

18

smacks of “punish[ing] the expression of religious

doctrines [the government] believes to be false” --

something the Smith Court said the government

could not do.11 In the same vein, compelling the

Kleins to create a cake for a wedding ceremony that

violates their convictions resembles involuntary

servitude more than freedom. The attempt to coerce

allegiance to the government’s opinion never ends

well. As Justice Jackson famously observed in West

Virginia State Bd. of Educ. v. Barnette, 319 U.S.

624 (1943): “Compulsory unification of opinion

achieves only the unanimity of the graveyard.” Id.

at 641.

A crusade by secular anti-religionists is still a

crusade. Regardless whether the government is for

or against a particular religion, government

involvement with religion “tends to destroy

government and to degrade religion,” Engel v.

Vitale, 370 U.S. 421, 431 (1962).

When applied against people of faith, far-

reaching antidiscrimination laws such as the

11 It also raises suspicions whether this law and others like it

are truly content-neutral. The underlying hostility against

the Kleins’ religion seeps through at every turn.

19

Oregon public accommodations law raise serious

concerns of government involvement with religion.

Without adequate guidance from this Court, the

lower courts will continue to disrespect the rights of

citizens of faith and the Free Exercise Clause will

be further eroded.

Religious freedom is the first freedom

guaranteed under the First Amendment. It is a

cornerstone of our republic. If this Court does not

act to restore adequate protections for the free

exercise of religion, the very foundations of the

republic are placed at risk.

CONCLUSION

For all the foregoing reasons, the petition for

writ of certiorari should be granted.

20

Respectfully submitted,

Thomas L. Brejcha Stephen M. Crampton

President Crampton Legal Services,

Thomas More Society PLLC

309 W. Washington Counsel of Record

Suite 1250 P.O. Box 4506

Chicago, IL 60606 Tupelo, MS 38803

ph: 312-782-1680 ph: 662-255-9439

smcrampton@hotmail.com

November 26, 2018